A Quarrel With the Status Quo
Charlie Baird on criminal justice, equity, and the Travis County D.A.
Austin Chronicle: Why don't we start with a general question: Why did you decide to run? And what's your purpose in doing so?
Charlie Baird: Well, I'll tell you, honestly – and the reason I'm hesitant is because I think it sounds syrupy and mushy, what I could do – I'm drawing my judicial retirement, and I'm here in a nice firm, and I make a nice income here, and what I could do is I could trade in my 2003 Buick and buy me a Lexus and drive down to the courthouse every day and not worry about all of these other issues. I just can't do that from a moral – I think it is wrong for me to have the willingness and the effort and the energy to put into something that could absolutely, fundamentally change and positively affect people's lives [and not do it]. It's like you get in your Lexus, you know, and to get to the courthouse you have to drive through the ghetto – and I'm just not going to do that. I'm not going to sit back and know that these issues are out there and ignore them and not do anything about them.
AC: You couldn't affect these things sufficiently as a judge?
CB: I could not affect it sufficiently as a judge for a couple of reasons. Number one is, I do believe I affected it significantly and positively as a judge, as only one-seventh of the justice system, because there are seven felony judges. Everything that I did – or I should say nothing that I did – impacted the other six judges. Nobody said, "I want to start this parenting program; I want to start this jobs program; I want to start this cognitive program that you have in your court." Or "I want to start this Friday" – we call it the Friday Pee Team – "for people who are habitually having trouble come to court every Friday and give me a urine sample." The deal was, if the urine sample was dirty, they went into custody right there on the spot. If it wasn't, they walked out of there and had a weekend with everybody else. If it was dirty, they went into jail Friday and Saturday and were released on Sunday morning, [so] in case they had a job, they would be there on Monday.
But it never got beyond the scope of the 299th District Court.
AC: So is your quarrel then as much with the other judges as it is with the District Attorney's Office?
CB: No, my quarrel is with the status quo. And I think that, to the extent that the judges who were extant at that time – like Judge [Bob] Perkins, Judge [Wilford] Flowers, Judge [Jon] Wisser before me – they were people that were there for a long, long time, but they grew up within the system. And they couldn't see – it was just like: "Well, nobody's ever done that before; I'm not going to do it. Judge [Mace] Thurman didn't do it; Judge [Tom] Blackwell didn't do it, and I'm not going to do it." And we would go into some of the judges' meetings and somebody would say, "Well, this is how Judge Blackwell did it." You know, and I'm thinking, my God, Judge Blackwell hasn't been a judge in ... or Judge Thurman ... I'd say, "Well my God, he's been gone for 20 years!" Why would you expect things to stay the same? When we were a county then of 100,000 or 200,000 and now we're over 1 million. Things have to change and progress. And there never was any impetus for change.
And one other thing I'll say is this: When you keep electing judges and they come right out of the D.A.'s Office, that's how they're raised.
The Efrain De La Fuentes and the Bryan Cases and the Cliff Browns of the world – and I like them all, they're all friends of mine – but they're not going to be agents of change as far as saying, "We're going to do things differently," when they've only done it one way all of their lives.
AC: Would you have the same beef then with the D.A.'s Office? Rose [Lehmberg] has been there longer than [retired D.A.] Ronnie [Earle] was there. Sounds like maybe that's the same issue?
CB: Absolutely. ... This is the deal: Rosemary was on the payroll before Ronnie was elected; Ronnie was there 32 years. So, Rosemary is 33 [years]. She gets elected, she's going to have spent 37 years in that office at the end of this term. If the people of Travis County re-elect her, then that's 41 years. And Rose is the type of person .... You know, the prosecution, her devotion to this office, her devotion to Ronnie, is unquestioned. And because of that she has had – and she runs on this – she has had a significant role, and maybe the dominant role, in establishing the D.A.'s Office the way it is now. Whatever it is – this box – she has pretty much designed it and has her imprimatur on it. And my position is – and I don't mean this to be trite either – is that she can't see outside of the box because she designed the box.
The things that I'm talking about, they just ruffle her feathers. They just upset her for someone to say there might be a different or a better way of doing things than the way we're doing it now. And so she never has said, "Charlie, this is a good idea" or "We tried that, and this is why it didn't work" or "Here's why we do it this way, instead of the way you're suggesting." We never have had that dialogue, and we never did have it while I was on the bench. And I emailed her repeatedly about the 24/7 [intake] program, and I talked to her about my pretrial diversion program ... but I had my own diversion program planned, set up, designed, ready to go, thinking I was going to be re-elected and working with them on implementing this. Man, it was beautiful! It was all volunteer; it was all free. It didn't cost the county nothing; it didn't cost the defendant nothing. It was perfect.
We worked on this ... and designed it for probably a year or more and had in all of the stakeholders, except the D.A.'s Office. When I talked to Rose about diverting people, she said, "Why don't you get it, fix it up, design it, do what you want to, and [First Assistant District Attorney] John Neal is going to be in charge of that, then run it by John." So I get everything up and going, and then no John, no Rose. [D.A.'s court division Director] Robert Smith comes in and says, "What are you doing?" So I explain it to him, and he takes it back to Rose. And then [Judge] Karen Sage [Baird's successor] comes in and has a meeting with my committee, because now I'm passing it off to her, and Sage says, "I'm not going to do that." And the D.A.'s Office says, "We're not going to do that."
AC: Was there any reason given?
CB: There was no reason given; there was no dialogue, no discussion about it. And I don't want this to sound bad against Judge Sage, because ... it's very unfair for a leaving judge to have this brand-new, spanking program and say ...
AC: "Here you go; take this and do it."
CB: Exactly – and "I want you to love and to nourish it." She had different things, so I didn't necessarily expect her to do it, but I didn't expect a year and a half of our work to go down the drain either.
AC: One follow-up on that: How can it not cost the county any money? Everything costs money, no?
CB: No. We had volunteers, we had – the guy's name is Charlie Cannon, if you want to call him and talk about this program. He's a retired lawyer from Haynes Boone. He's a good-hearted – despite being a franchise lawyer for a silk-stocking firm, he's a nice guy. And he wanted to do something constructive, and so we designed this. It wasn't totally comprehensive, because we thought there would be people with certain issues – mental health issues – that we could not address them in this diversion program. But everything in here was free. It started out with my review of the case, to determine if I personally thought, from their circumstances, whatever might be in there, that they might be appropriate for diversion. And I'm not talking about your three-time ex-con.
AC: What kinds of cases?
CB: All cases. I took nothing off the board. ... Anyway, we then figured out a screening tool to figure out what their needs were, and we were going to have them sit down and – in fact, it was so far along we had a computer installed in the office outside my courtroom, we had a training for volunteers, primarily Gray Panthers, older people, retired social workers, people who wanted to stay involved, that were going to go over this screening application questionnaire, figure out what these people's needs are, and sit down with them right there to give them the resources that they needed, to the extent that they could.
Like Alcoholics Anonymous: Here's a list of every AA meeting in Travis County; if you need a job, here are the people to call at the city. Or, what we found – what I found – is that some people in the criminal justice system are so poor at managing their own lives that I would say, "Listen, they have job program at the city; go down to City Hall and talk to them." And, literally, I would have people who couldn't find City Hall. So what we did is, we brought City Hall to us! That's what the jobs program was; they met my people in my court.
AC: Was her rejection of this program one of your triggering reasons to decide to run for D.A.?
CB: Yes. ... My discussion was, early on, with Rose. And truly, it wasn't like, "OK, we're going to sit down and talk about pretrial diversion." She was in there on some other stuff, and I said, "This is something we really need to look at, getting out some of these people who really shouldn't be in the system at all." She said, "I agree, and why don't you put your thoughts together, get this thing worked out, and give it to John [Neal]." I'm getting everything going and following her lead and at some point Robert Smith comes in, who is now below John, and he says, "I hear you've got a pretrial diversion program going; what is it about?" And I explained it to him. And he left. And the deal was, "We're not going to participate in that."
AC: Then this is something that we would see happen under you as D.A.?
CB: Absolutely. ... What [Rose] has done, she has a – and all politicians do, I think – but she has a habit of taking credit for what other people have done. If you go back and read the Statesman's article on the diversion program, this was [Judge] Mike Lynch's idea a long time ago. He pitched it to Ronnie, and Ronnie would never buy it. So now she says, "I'm here, Lynch, you run it, and under these confinements. OK?" So now she's saying, "I'm the one that envisioned this program, and I'm the one that got it up and running," or whatever. And I'm not saying she shouldn't get credit for it.
AC: So there is a diversion program?
CB: Yes. And it started under her watch. And that's great, and she ought to get credit for it. But let me tell you what it is. It is state-jail or third-degree felonies. And it excludes some third-degree felonies like failure to stop and render aid, and DWIs, and it is limited to individuals who have had zero arrests – even if you get arrested as a juvenile and the case is dismissed, you're still ineligible for this program.
AC: So it's extremely limited, and you're talking about something that is far more broad.
CB: Oh yeah. So anyway, it is screened by three middle-aged white guys – John Neal, [D.A.'s trial bureau Director] Buddy Meyer, and Robert Smith; they're the screeners. Not everybody, but the majority of people in the program, are white. And the program in its scope is timid; it's almost embarrassing how small it is. It only has 81 people in it.
AC: I think you did mention it in the debate.
CB: And you know what I said? I said it's got 92 people in it, and I got that from Buddy Meyer the week before at an open seminar, because he was talking about the diversion program. A week later she says, "You're wrong; it has 81." OK? They don't even know how many people are in the program. And if you look at the population that is in the criminal justice system, it is majority minority.
AC: So it's like winning the lottery to get into this program.
CB: Yeah, exactly. There is a fellow named Bill Kelly. He is the criminology department head at the University of Texas. I talked to him about this and the way it's screened, and he said what she's doing is skimming the cream off the top. OK? So what she wants to say is "I have this program, and it's got a 99.4 percent success rate."
AC: This is a problem often with general diversion programs, like drug court or whatever; the complaints come that they're cherry-picking the clientele to boost numbers and successes, and it doesn't give you an accurate picture of the criminal justice population or of how successful your program actually is.
CB: That's right.
AC: Do you think its just that they're afraid to have failures, because no matter how well you screen, you're going to have clients who fail and perhaps fail in a big, bad way? Do you think that's part of it? This institutional fear of having a bad seed?
CB: Yes. I think that is exactly right.
AC: But you're not afraid of that. Why?
CB: I'm not afraid of failure.
AC: That's what you were attacked for most as a judge, right? That you're soft on criminals and somebody is going to get out and [commit another crime].
CB: And let me tell you something: I've had all of that happen to me. I've had the guy who jumped bond and didn't come back, you know, and I've had the guy that you let out on bond and who kills somebody. Those things happen. There is no way to get around that.
AC: But what would you say about that? When someone says, "See, look what happened, you let that guy out and he killed that lady over there," what do you say to them? How do you answer that?
CB: I don't know that you do explain it. It's a system; it's a human system, and it's fallible. You make an intelligent, informed decision when you do it. You know, it's like saying, you go to war and somebody does this rape and killing and this Abu Ghraib stuff, and you say, "How did that happen?" Well, it just happened, and we're sorry it did, but that doesn't mean we shouldn't have been over there or had a prison or whatever the situation was. But there is a tremendous fear of that. It is in the D.A.'s Office – I mean, how you would disqualify people who have an arrest is ridiculous to me.
AC: Yes, how do you end up with a felony? You would think they would have some contact with the criminal justice system before they get picked up on a felony. That would mean that anything disqualifies you. That's sort of hard.
CB: Anything. Anything above traffic, class C speeding or whatever. And it is especially discriminatory there, because black and brown people are just hassled more by cops. They're liable to be arrested more. And if they're otherwise eligible, they've got this disqualifying characteristic somewhere in their past.
AC: Pulling away from this specific kind of diversion program, taking a little bit broader look, what do you think are the central problems in the Travis County criminal justice system that you, being a D.A., would address first? I think you've touched on it – you think there's a racial imbalance – but talk about what you think are the central problems that this institutional legacy is ignoring.
CB: The number one thing I would do is I would include case screening. And that goes back to the 24/7 [intake]. What we've got now is the tail wagging the dog. [The Austin Police Department] – and I don't just want to point my finger at them, but they are the dominant law enforcement agency in Travis County – they arrest people, they charge people. They are totally in charge of the process, wrap it up in a bow, and drop it off at the D.A.'s office. And there has been zero screening of those cases. And that to me is a fundamental lack of leadership – not only leadership, but a fundamental misunderstanding of how the system should operate. The district attorney should be the one that is in charge of saying, "OK, you [police] say this has happened; this is the case we will take." None of that is happening now. "None" is too broad – I'm sure there's some of that happening, at some point I'm sure – but to be honest, I never saw it. And that's why they have what I think is probably the highest percentage of dismissals of a major metropolitan county in Texas. It's a "garbage-in" type deal, and once you realize it, you have to dump it.
AC: The dumping happens later in the process?
CB: Later in the process. But by then, what you've done is use a tremendous amount of resources figuring out whether this case was ever worth prosecuting to begin with. ... Where if you have somebody down at the D.A.'s office 24/7 and the cop says, "I just arrested somebody for X," and a prosecutor is on the other end and says, "OK, tell me about X and how you came to arrest him." It could be that the officer is just totally wrong; it could be that the guy arrested has just an attitude problem and not an arrest problem. When I'm D.A., my people are going to say, "Wait a minute, this is not a crime; this is not criminal conduct." Or it could be, "This is not a felony, and you need to talk to [Travis County Attorney] David Escamilla [whose office prosecutes misdemeanors], because we're not taking felony charges in this type of situation." Or it could be, "Take the cuffs off of him, release him, you continue doing your investigation all you want to, but don't bring him down here and take him through the system and have us find out three weeks later whether this is something worth prosecuting or not."
AC: Well, I suspect that is something that would put you in an adversarial position with APD.
CB: I think it would ... I think it would.
AC: When Rose was running last time and Mindy [Montford] was running against her in the primary, that was one of the things that Montford brought up over and over, the need for a 24-hour intake process, and Rose always said, "Well, we don't need that." ... She said in the debate [with you], if I recall, that they are accessible 24 hours.
CB: I don't know what she means when she says "We're already accessible." I did have cases as a judge where there would be like a murder case – I remember the murder case where somebody killed somebody over here and then drove to like Fredericksburg. They thought the murder weapon was in the vehicle in Fredericksburg, and the guy was in custody, and they wanted to search the vehicle in Fredericksburg, and I signed a warrant for that, and that was on weekend time. So there is some type of way they can do it, but I think clearly it is the exception and not the rule, and it is because of the exceptional nature of the case.
AC: But not for the routine – day in and day out.
CB: Yes. "We arrested somebody for burglary of a habitation." OK, tell me about this. And, clearly, if [the officer] says [the victim reports, "I woke up and the guy was inside the house and the guy was putting my jewelry in his sack," well, yeah, bring his ass down here; we'll take care of him. But, you know, "This guy was walking along, and we thought he was going into a pawn shop, and something had just been burglarized, so we arrested him" ....
AC: Does that kind of thing happen?
CB: Absolutely. ... I've had five cases so far that dealt with this. Four of them have been dismissed for insufficient evidence. And I'm thinking, if I've had, as kind of a fresh lawyer, being here for a year, have had four cases dismissed for insufficient evidence, that's got to be happening a lot. And every single one of them were arrested, and every one of them was dismissed, and every one of them has to go back now and file a motion for it to be expunged to get the arrest off their record. And one lady was in jail for a week.
AC: So, by the time it gets to you, the presumption is, "Well, he wouldn't have arrested him if it wasn't justified"?
CB: Yes. And let me tell you something about the tail-wagging-the-dog situation. When they get in the next morning and they look at this and it's kind of a colorable claim of a case, then they don't question that. The guy stays in jail, and eventually he's appointed a lawyer, and it starts costing money there. And that's one of the things I can't figure out about Rose. Rose says it's "not cost-effective."
AC: To have a 24/7 intake?
CB: Right. And I disagree with that for two reasons: One, I think it's a very small view of cost efficiency, because it may not be effective for her individual budget to have somebody there, but once the county starts appointing lawyers and once Sheriff [Greg] Hamilton has to house them for $48 per day, it gets real expensive. So I think that it's kind of a short-sighted or narrow view. (I will say this about her: I don't think that she sees necessarily the big, global, Travis County criminal justice picture, at least like I do. She's more compartmentalized.) And the other thing is, from a humanitarian-type thing, I don't think we should be arresting innocent people and having them in jail and losing their jobs and ...
AC: ... sorting it out later.
CB: Yeah, yeah; I really do not agree with that at all. The truth is, the criminal justice system is not designed to be cost-effective. It is a very inefficient and costly process, and it should be, because you're talking about depriving somebody of their freedom, and it shouldn't be easy to do that. So, that's my answer to that.
AC: OK, so that's number one. When your campaign began, and again in the debate, you talked specifically about the racial aspects of this process. So I'm assuming that if that isn't number two, that's one of the numbers – that this election will have an effect on racial imbalance.
CB: Absolutely. And I think that what happens is, I think – well, I don't think, I know – minorities are arrested at a higher rate than Anglos. And there are statistics on this: They're asked to consent to searches of their vehicles more; they're not given as many class B citations, where you show up later for possession of less than 2 ounces of marijuana. They're just in there more, so it would dramatically impact and affect them right off the bat.
AC: Do you think that the current office has done anything to try to address that issue at all?
CB: Not that I'm aware of. The racial issue? I don't think she recognizes it. ... The only thing I've ever heard Rosemary say, and she's never spoken about race in any of the forums we've been in, other than to talk about discipline of minority students in public schools. And that is a very odd response. I just don't really understand it.
AC: If I recall, she said she wants to work with the school district ... to not criminalize student disciplinary actions.
CB: Honestly, I didn't know what she was talking about.
AC: And I think we're talking about something more institutional in Travis County, generally ... which is that, by Texas standards – which admittedly is not saying much – we pat ourselves on the backs all the time about how progressive we are. So therefore, when somebody brings the charges that this is inequality and injustice, people say, "Well, that's somewhere else." Do you think that's true? Do you find that when you're talking?
CB: It is amazing to me, the line of demarcation known as I-35. And if you talk about this on the east side of I-35, everyone says: "Baird, you're right. There's as much discrimination here, or here it's as bad or worse." And you talk about it on the west side of I-35 and everybody says, "No, we're good; we're solid. We're liberals; we don't do that." And that's absolutely not true.
And who is our city manager, Marc Ott? He said that in all of the cities he's been in, that he's never seen such a case of just separating the races like we have here. And we do. And the first ad that I ran in y'all's paper, in fact, was to say, "Y'all on the Westside don't know what's going on over here" and why we desperately need change. So I think that we like to think that we're more open-minded and progressive, but the bottom line is, in the area of criminal justice, we're not.
But I'll say this, and I'll pat myself on the back for it: I've said that everywhere I've been. I have said it to North by Northwest Democrats, and they didn't want to hear it; I've said it to Circle C Democrats, and they didn't want to hear it. I've said it everywhere, because I've made a commitment to myself that this is going to be an honest campaign; that's why you're running, you've got to talk about it countywide. It's kind of like Bobby Kennedy talking about draft deferments when he was running for president, you know, in all the colleges, and everybody there was on a draft deferment, because they were in college. But you've got to take that message, if you believe in it, to the people that don't necessarily want to hear it. ...
Well, let me just say this, to comment on the racial discussion. I don't know how [Lehmberg] can go around Travis County and say [the diversion program has] 81 people in it and they're mostly white, when the population that you're trying to divert is majority minority. So when I expand it – I'm not saying I don't want the white kids in there; I want everybody in there that deserves to be there – so when I expand it, it is also going to take care of the racial disparity that is there now.
The specific impact these two programs will have on minorities is, we'll not get them in the criminal justice system to begin with because they might not should've been arrested. And the other thing is, if they should be arrested and they should also be diverted from the criminal justice system, they're going to be diverted in greater percentages than they are now – and numbers, not just percentages, but numbers, too.
AC: Are there other issues that you see your campaign as addressing?
CB: Yes. And this is heresy as a judge to say this, but I don't think that we try enough cases in Travis County. I think that if you go up to the courthouse – every criminal district court has a trial docket every other week that's printed up – but if you go up there every other week when, say, the 403rd is supposed to have a trial, nobody's there, because they pled out that morning. And everybody is kind of, with a wink and a nod, happy that didn't happen, because we don't have to have a trial this week. I think that is wrong. I think that we ought to have trials; I think that we ought to be trying major cases. I don't think that we should be pleading people who are dangerous and threatening. I think that we should be actively prosecuting those individuals, trying them and trying to get large sentences on those individuals because that is true protection of individuals in our society. We have plenty of bad guys and gals here that we actively need to do that with.
This is what is happening: You've got so much trash coming in – because you don't have a filter; you don't have a screen – that you don't know the difference between a less-than-a-gram crack cocaine case and a murder case. And then when you realize "Oh, wait, we have a murder case" ... then it takes a year to get ready for it. And that's ridiculous. It shouldn't take us a year to get ready for it. And when we have this murder case, this good murder case or robbery case or whatever it is, we shouldn't plead it for 15 or 20 or 25 years when the guy's been to prison twice before. We ought to say, "We're going to try this case, and we're going to prove it, or we've got a higher plea bargain; if you want to take it, fine, but if you don't, let's bring in the people of Travis County to say what this case is worth."
That's going to make me very unpopular with the judges. But, you know, [Chronicle staff writer] Jordan [Smith] can tell you ... you can go in those courts .... I think Judge Sage told me she'd tried four cases this year. Everything else pled out. And I don't know how you can have a county this size and a jail population this size and people are trying four cases a year.
AC: So in fact the D.A. has become the justice system; the D.A.'s Office becomes the judge, jury, and executioner. You don't have that more adversarial system.
CB: Yes, and let me tell you something: That's a good deal. When you get 12 people in there who have sat in there and observed the administration of justice, and saw a person get a fair trial and return a verdict of not guilty if they were not convinced, or return a verdict of guilty and sentence them to prison or whatever, then they're buying into the system, they've got confidence in the system about what we're doing over here. They had a hell of a system of justice in Iraq, but nobody had any confidence in it. You know? I want them to participate and have confidence in what we're doing.
AC: There are a number of cases over the years that are troubling: The prosecution of Lacresha Murray was a bad one; there's the yogurt shop; there's Fran and Dan Keller. ... Why is it that prosecutors are never wrong? And how do you say, "You're wrong," and how do you keep your eyes out for these kinds of things to make sure they don't happen?
CB: I think prosecutors are never wrong because they are cynical, and they don't believe in the constitutional framework in which this thing is supposed to operate, they don't believe in the presumption of innocence, and they think, "Well, if we got him, he's bound to have done it or done something else," or whatever. I don't think that they believe in the transparency of their office in this part of the process; they don't believe in Brady v. Maryland and the immediate disclosure of stuff that is either exculpatory or mitigatory or impeachable. They just don't really have that in their heart and soul and believe it that that's what we have to do to have a justice system where these things – like the [Michael] Morton case, the Lacresha Murrays, the Kellers, whatever – don't happen.
And what I'm going to do is, I'm going to establish a prosecutorial integrity unit when I'm there, and it's going to be headed by a guy named Mike Ware, who headed that same deal in Dallas. And we're going to look into all of the old cases that are troubling, which is the Keller case and any other case that comes to mind. And we're going to look into it and decide if it's a righteous case or not. And if it's not, we're going to own it, we're going to take responsibility for it, and we're going to do everything we can to right it.
And I'm going to do what [Dallas County District Attorney] Craig Watkins does. And when the judge says, "OK, we're going to shake you loose," I'm going to be there to shake his hand, hug his neck, or whatever I have to do, and tell him how sorry we are.
AC: Do you think that the D.A.'s Office has done enough in this area to make sure that convictions are righteous?
CB: I don't know. Rosemary says that she has a working agreement letter with the UT Innocence Project – I'm not sure what that means. And she says there have been three DNA cases, and that two of them were exonerations. I don't know what changes they made as a result of that. I think that Danziger and Ochoa [who were sent to prison for a 1988 murder they did not commit and were freed more than a decade later, after the real perpetrator came forward] are terribly troubling cases. ... When there is a plane crash, everybody stops and they go out there and they figure out why did this plane crash, and let's make sure it never happens again. It seems like to me that they don't do that in the criminal justice system. They don't say, well, my God, why did this happen in Morton? Or Ochoa and Danziger? Or how did it happen with the Barton Creek rapist [Carlos Lavernia]? Or how did it happen – and this is a case that nobody's talked about yet – in the cab driver case? Remember? Where [someone] shot two or three cab drivers and they tried a guy, and he was acquitted. And it turned out later, another fingerprint came up and it led them to somebody else? This office had tried the wrong man for capital murder. ...
AC: Have there been times when you've been on the bench where you've made some decision that you later believe was a mistake?
CB: Absolutely. ... I can give you a case. It's a guy named Brimage, B-R-I-M-A-G-E, where it was a capital murder case, where we reversed it [while Baird was a judge on the state's highest criminal court, the Court of Criminal Appeals] and then on rehearing, we changed our minds. And I wrote a separate, concurring opinion, about how when you're wrong you ought to say it and admit it. It might be the only good quality that I have, but I'm mighty quick to take ownership when I'm wrong, because I think that's just life: You make mistakes. You make mistakes with the best of intentions, but when you make it, you accept it and own it and go on down the road, and hopefully it won't happen again.
AC: Another flash point issue is the death penalty. This office seeks it relatively more rarely than say, Houston or other jurisdictions, but it has sought it and in certain notorious cases, like the [David Lee] Powell case [in which Powell was convicted of killing an Austin police officer in 1978], has been enthusiastic about it, even many years later. What's your attitude about that question, and what is your sense of where you'd come down?
CB: That's really a two-part question. I kind of do not agree with your premise. In other counties, in major metropolitan counties, I'm not sure that we do not, on a per capita basis, seek the death penalty more often under Rosemary than under other people. And you might be able to check that, but I know that, since she's been there, she's sought the death penalty three times and has received it in each case. One of them was a guy named [Milton] Gobert. And another was a white guy [Paul Devoe] who killed multiple people and went off to Pennsylvania. And the third guy was a Hispanic male [Areli Escobar] who raped and stabbed his neighbor. And I think that there are three or four others in the pipeline. So I think that she's pretty aggressive about seeking the death penalty.
Now let me just say one thing about Gobert that I don't think anybody has caught onto yet. The D.A.'s Office is painfully slow about making decisions. They're just paralyzed in the decision-making process, about how to make a decision, make it stick, make it work, stay with it, and go on down the road. [Judge] Bob Perkins in the Gobert case suppressed a confession for a Miranda violation. The state has the right to appeal that. Now, it's my understanding that [Assistant D.A.] Bryan Case [head of the office's appellate division] said, "Don't appeal it; Perkins is right." But [Assistant D.A.] Gary Cobb [head of the grand jury/intake division] said, "Oh, no, we need to appeal it." So they appealed it to the Third Court, it hung out there for a long time, and then it ended up going all the way to the Court of Criminal Appeals. And the CCA said Perkins was right to suppress the confession. OK? So the case comes back, and it's ultimately tried. Do you know how long all of that took? Over four years. The guy sat out there in the Travis County jail, $48 a day. That to me is just ridiculous. If a judge rules against you, you don't just stop the game. You just don't have that piece of evidence. Sure enough that evidence remained suppressed, and they tried it without it and still got a conviction and still got the death penalty. So I don't know how to merge that into all of this conversation. Anyway, that's just a death penalty issue.
Now, I am personally opposed to capital punishment. And this is why: I am opposed to it for three reasons. Number one, it has never shown to be a deterrent – obviously it's a deterrent to the individual, but when you're talking about in the criminal justice system ... Does it stop Ted Bundy from killing? The answer is no. The second thing is it is expensive. The last thing I saw, and I think this was a Dallas Morning News study, was that it essentially cost the state $2.1 million to successfully prosecute a case that ended in the ultimate execution of an individual – $2.1 million, versus $600,000 if you tried him for a non-death offense and he was convicted and given life without parole. So what that says is, is that everybody on death row represents an investment of $1.5 million, which is about $600 million if you take the current death row population. And so I think it's terribly expensive. The third thing is, it is a very, very fallible system, and I just think that there's always a chance of error. And the best case of that – well, there's lots of cases of that – but the best case of that is Randall Dale Adams, where you've got eyewitnesses that drove by and said they saw him shoot him; you've got the co-defendant, the accomplice, and that guy was innocent. Innocent, innocent, innocent.
So, anyway, those are the reasons I oppose it. I will say this: I've got some internal struggle with this. I don't oppose it for moral reasons. I don't think it's wrong for us to extract the ultimate sanction against somebody for violating society's laws. The truth is, that happens all the time. I've sent people to prison for life. Seriously. And if it's a situation where they're sentenced to prison for life, they're never going to get paroled, and they're going to die there – that's a death sentence, it just takes 30 years to get there, but that's the same thing; we're extracting the death penalty from that individual. So I don't have the William Brennan, Thurgood Marshall moral opposition to capital punishment.
As D.A., I would not categorically take it off the table. And this is where I'm really having a kind of an internal struggle about this. Even though I am personally opposed to it, I can see situations where I think people of Travis County would demand it and say, "This is where we think the ultimate penalty has to be." And the thing that jumps out for me, right off the bat, is Charles Whitman. If you get up to the Tower and you shoot him, but you don't kill him, and he survives, he's shot 19 people, I think the people of Travis County would say, "We've got to prosecute this guy for the full load, seek the ultimate punishment." And I would do that, because I think to that extent, the D.A. is a political representative; he represents the will and the wishes of the populace. And I could see the yogurt shop case, if, you know, you kill four of our babies, rape them, burn them up, that is terrible. But it would still have to pass the final hurdle that I have of my three. If it's a situation like that, I don't care what it cost or whether it deters anybody else or not; those things are gone. But I've got to be absolutely certain that the person did it.
AC: In an uphill race against a popular incumbent, where do you think you're going to find your votes?
CB: First of all, I think the people of Travis County are more amenable than anybody else in Texas to the kind of campaign I'm trying to run, which I think is an intelligent, issue-oriented campaign. And number two is, I think I'm right on the issues. I think that once they say, "Wait a minute, we're keeping innocent people in jail? We have programs that discriminate against minorities and we're not trying cases the way we ought to," and the whole panoply of issues.
AC: There were people who were criticizing you on [the Tim] Cole [exoneration], not because they disagreed with you on exoneration or some kind of retribution over what had happened, but that you had overstepped your authority, that you didn't have the authority to do what you did. What's your response?
CB: I thought that I had the authority to do what I did in both the Cole and the [Cameron Todd] Willingham cases, because the constitution says the courts "shall be open" to anybody who's had their reputation harmed. [Texas Constitution, Article 1, Section 13: "All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.] And I thought "all courts" meant all courts, and if they couldn't get justice where the wrong occurred, that they had the right to go to any other court to get it. And nobody disagreed with that in Cole. And nobody disagreed with that concept at all until Willingham came in with the gubernatorial re-election and all that.
But I'm very, very proud of the Tim Cole case. And the disappointment that I have with Willingham is that the Third Court of Appeals held onto the case so long, from October until December the 23rd or whatever it was, so I only had eight days left in office that I could not have a judge come in to determine if I should've been recused or not. They never said whether I should've recused myself or not; they only said that was an issue that should've been determined. And all the cases and authorities that I relied upon for not doing that was that the Navarro County prosecutor didn't have standing in this particular action to contest or to recuse me. And this is really inside baseball, but my argument there was – and I shouldn't say argument, because that sounds as though I had a position in it – if I'm trying a guy as the judge and the defendant is sitting there, and the defendant's mama stands up and says, "You're not being fair to my son; I want you to recuse yourself," well, I don't stop everything and recuse myself, OK? And this was a suit that was filed on behalf of Willingham's survivors, and the other people were there at my invitation. I was the one that made sure they were invited to be there. And, anyway, that was my biggest disappointment. ... And I didn't want to leave that in [Judge Sage's] lap, and I really did feel bad as I was leaving that the Willingham case was not resolved and was left in her lap.
AC: In terms of Texas criminal justice, how exceptional do you think the Cole and Willingham cases are?
CB: I think I'm the only judge in Texas who would've heard either of those cases.
AC: And that was half the question. The other half is, how exceptional do you think those incorrectly decided cases are?
CB: I think the problem is very large in eyewitness identification cases, which is what Tim Cole's was. Because there's no doubt in my mind that when [Cole witness] Michelle Malin said, "That is the guy," through the suggestive process, she absolutely believed it. And I think Willingham is an anomaly from a scientific standpoint, because the state of the forensic science was such that everyone relied on it. A&M taught classes on this stuff; they published pamphlets on it. The fire marshal of Longview, Texas, could show us a pamphlet and say, "This is what crazed glass looks like, and what causes it." And to me what happened that was wrong was, when everybody realized that this was faulty science, no one said, "Well, let's go back and see how many people were convicted on this." And they're still fighting on this, and not going back.